VED MITTER GILL Vs. U.T. ADMINISTRATION, CHANDIGARH & ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 3194 of 2015, Judgment Date: Mar 26, 2015
"REPORTABLE"
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3194 OF 2015
(Arising out of SLP (C) No.20379 of 2006)
Ved Mitter Gill ... Appellant
versus
Union Territory Administration, Chandigarh and others ...
Respondents
WITH
TRANSFERRED CASE (C) NO.41 OF 2010
TRANSFERRED CASE (C) NO.42 OF 2010
TRANSFERRED CASE (C) NO.43 OF 2010
TRANSFERRED CASE (C) NO.44 OF 2010
J U D G M E N T
Jagdish Singh Khehar, J.
1. Through this common order we propose to dispose of the Special Leave
Petition (C) No. 20379 of 2006 as well as the Transferred Case (C) Nos. 41-
44 of 2010. The aforesaid transferred cases were pending before the High
Court of Punjab and Haryana at Chandigarh (hereinafter referred to as 'the
High Court'). Whilst the Special Leave Petition (C) No. 20379 of 2006
came to be filed before this Court assailing the order dated 1.5.2006
passed by the High Court in Civil Writ Petition No. 5682 of 2006. The
prayer for transfer was premised on the fact that the transferred cases
were couched in the same factual foundation and raised similar legal
issues, as were being canvassed through Special Leave Petition (C) No.
20379 of 2006. In the above view of the matter, while disposing of the
special leave petition, as well as, the transferred cases, we shall refer
to the facts in Ved Mitter Gill's case, i.e., the matter pending in this
Court as against the order passed by the High Court on 1.5.2006 dismissing
Civil Writ Petition No.5682 of 2006.
2. Leave granted.
3. In January 2004, appellant-Ved Mitter Gill was holding charge of the
post of Deputy Superintendent of Police, Model Jail, Burail, Chandigarh.
At the same juncture, Dalbir Singh Sandhu (petitioner in Transferred Case
(C) No. 42 of 2010) was also holding the post of Deputy Superintendent of
Jail, whilst Paramjit Singh Rana (petitioner in Transferred Case (C) No. 41
of 2010) was posted as Assistant Superintendent of Jail, Nishan Singh
(petitioner in Transferred Case (C) No. 44 of 2010) and Inder Singh
(petitioner in Transferred Case (C) No. 43 of 2010) were working as Head
Warder and Warder respectively.
4. Whilst the appellant/petitioners were discharging their duties in the
capacity indicated hereinabove, four under trials namely Jagtar Singh
Hawara, Paramjit Singh and Jagtar Singh Tara (who were facing trial for the
assassination of a former Chief Minister of Punjab Shri Beant Singh) and
Jagdev Singh, who was being tried for the charge of murder, escaped from
the Model Jail, Burail, Chandigarh, by digging an underground tunnel. The
approximate length of the tunnel is stated to be 94 feet. The description
of the above tunnel has been expressed in a report dated 15.4.2004
submitted by an Enquiry Committee constituted to go into the lapses
committed by the jail authorities in the above episode of escape, as also
to determine, the remedial measures for prevention of such a jail-break in
future. The description of the tunnel in the report, is reproduced below:
"2.4 An inspection of barrack No.7 of Burail Jail from where four
undertrial escaped made a number of revelations. The 94 feet long and
about 21" x 21" broad tunnel was a very professionally done job. The
tunnel had three sections, two vertical and one horizontal as under:
|a) |Vertical straight Section below the barrack |14' |
|b) |Horizontal portion with almost perfect |72' |
| |precision and direction | |
|c) |Vertical portion outside the main perimeter |08' |
| |wall used for exit. It was slightly inclined | |
| |for easy footage for escape" | |
The aforesaid under-trials had escaped during the night intervening January
21-22, 2004. Resultantly, a first information report bearing no. 17 was
registered at Police Station Sector 34, Chandigarh. The appellant, as well
as, the petitioners came to be detained after the registration of the first
information report.
5. By an order dated 1.3.2004, the Advisor to the Administrator, Union
Territory, Chandigarh having invoked clause (b) to the second proviso under
Article 311(2) of the Constitution of India, dismissed the appellant from
service with immediate effect. Similar orders were passed against the
petitioners.
6. Dissatisfied with the order dated 1.3.2004, the appellant as well as
the petitioners, assailed the respective orders of their dismissal from
service, by preferring appeals to the Administrator, Union Territory,
Chandigarh. General (Retd.) S.F. Rodrigues, the then Administrator of the
Union Territory, Chandigarh, adjudicated upon their appeals both on merits,
as well as, on their maintainability. Insofar as the merits are concerned,
he arrived at the conclusion, that the competent authority had rightly
invoked clause (b) of the second proviso under Article 311(2) of the
Constitution of India. Insofar as the issue of maintainability is
concerned, the Administrator of the Union Territory of Chandigarh recorded,
that the appeals were not maintainable, as the order passed by the Advisor
to the Administrator, Union Territory of Chandigarh, constituted an order
passed by the Government, from which there was no remedy of appeal.
7. The order of dismissal from service dated 1.3.2004, passed by the
Advisor to the Administrator of the Union Territory of Chandigarh, as well
as the order dated 11.2.2005 passed by the Administrator, Union Territory,
Chandigarh were assailed by the appellant, as well as by the petitioners,
before the Central Administrative Tribunal, Chandigarh Bench (hereinafter
referred to as, the Administrative Tribunal). Ved Mitter Gill, the
appellant herein, preferred Original Application No. 149/PB of 2005, Dalbir
Singh Sandhu filed Original Application No. 97/PB of 2005, Paramjit Singh
Rana had raised his challenge by filing Original Application No. 188/PB of
2005, whereas, Nishan Singh and Inder Singh filed Original Application Nos.
39/PB and 40/ PB of 2005 respectively.
8. All the above applications were dismissed by the Administrative
Tribunal through a common order dated 30.1.2006. Ved Mitter Gill assailed
the order dated 30.1.2006 passed by the Administrative Tribunal before the
High Court, by preferring Civil Writ Petition No. 5682 of 2006. The same
was dismissed by an order dated 1.5.2006. The order passed by the High
Court on 1.5.2006 came to be challenged before this Court through Special
Leave Petition (C) No. 20379 of 2006. The same has given rise to the
present appeal. The writ petitions filed by the others, namely, Dalbir
Singh Sandhu, Paramjit Singh Rana, Nishan Singh and Inder Singh were
pending before the High Court. Separate writ petitions were preferred on
their behalf, wherein they had assailed the common order passed by the
Administrative Tribunal dated 30.1.2006. The above writ petitions were
transferred to this Court, to be heard along with the Special Leave
Petition (C) No. 20379 of 2006. This is how the present appeal and
petitions have jointly come up for hearing before us.
9. It is imperative in the facts and circumstances of this case, to
extract herein, the order dated 1.3.2004, passed by the Advisor to the
Administrator, Union Territory, Chandigarh against Ved Mitter Gill. The
same is accordingly being reproduced hereunder:
"CHANDIGARH ADMINISTRATION
HOME DEPARTMENT
ORDER
Shri V.M. Gill, Deputy Superintendent Model Jail, Chandigarh (under
suspension) was appointed as Clerk on 1.1.1988 and thereafter promoted as
Assistant Superintendent Jail on 28.3.1990 and was promoted as Deputy
Superintendent Jail, Model Jail, Chandigarh vide order dated 25.5.2001. He
was thus required to be fully aware of his duties as prescribed in the
Punjab Jail Manual as adopted for the Union Territory Chandigarh and the
duty orders passed by the Superintendent, Model Jail, Chandigarh dated
29.5.2001, read along with paras 92 to 132 of the Punjab Jail Manual, for
the enforcement of laws, rules, regulations, directions and orders
concerning the management of the jail and the prisoners confined therein.
The said Shri V.M. Gill by virtue of his duties as such was required to do
all acts and things necessary or expedient for ensuring the safe custody of
all the prisoners at any time receive into or confined in the jail as well
as for enforcing and maintaining discipline and order amongst such
prisoners and all subordinate officers of the jail. The said Shri Gill was
fully aware that he was required to see for himself every prisoner once in
every 24 hours and to visit every barrack, ward, cell, compartment and
every other part of the jail and premises thereof every 24 hours. It was
thereof his duty to be present every evening when the prisoners were locked
up for the night and every morning when the prisoners were taken out of the
sleeping wards, cells or other compartments, satisfy himself both by night
and morning that all the prisoners were present and in safe custody and to
forthwith report every unusual occurrence of a serious nature to the
Superintendent of the Model Jail. The said Shri Gill was fully aware of
his duties that he was required at uncertain times, atleast once a week to
cause each prisoner and all clothing and bedding and all wards, cells and
other compartments, workshops, latrines and other places frequented by the
prisoners, to be thoroughly searched for prohibited articles; to regulate
all interviews and communications between the prisoners and persons who
were not prisoners and to prevent all persons who were not duly authorized
by the competent authority from entering the jail premises or having any
access of any kind to, or communication with any prisoner, and to arrange
that the proper officer of the jail was present during all the interviews
held;
And whereas on the night intervening January 21/22, 2004, four under trial
prisoners namely Jagtar Singh Hawara, s/o Sher Singh, Paramjit Singh, s/o
Jagjit Singh, Jagtar Singh Tara, s/o Sadhu Singh and Dev Singh, s/o Madan
Singh lodged in the Model Jail, Burail escaped through a tunnel dug from
their barrack. The first three under-trials namely Jagtar Singh Hawara,
s/o Sher Singh, Paramjit Singh, s/o Jagjit Singh and Jagtar Singh Tara, s/o
Sadhu Singh were being tried to their involvement in the assassination of
S. Beant Singh, then Chief Minister, Punjab and had links with Babbar
Khalsa International a terrorist organization, while Dev Singh was being
tried for murder. The said Shri V.M. Gill was fully aware that Jagtar
Singh Hawara S/o Sher Singh, Paramjit Singh, s/o. Jagjit Singh, Jagtar
Singh Tara, s/o Sadhu Singh were dreaded terrorists and high security
prisoners;
And whereas a case F.I.R. No.17, dated 22.1.2004 under Sections 223, 224,
452, 457, 120-B, 121, 121-A, 123, 217, 221 IPC, P.S. 34, Chandigarh was
registered with respect to the escape of the above mentioned under trials,
and from the evidence obtained during the course of the investigation of
the case, it is apparent that the said Shri V.M. Gill, was involved in the
conspiracy to facilitate the escape of the under trials by willfully
neglecting his duties and by providing them support in different forms.
This is evident from some of the following instances:-
(1) Curtains were allowed to be hung on doors and windows from inside the
barrack occupied by the said under trials, resulting in absence of
visibility from outside and facilitating the prisoners to carry out their
plans unobserved in violation of paras 324, 327 and 328 of the Punjab Jail
Manual, 1996 as adopted for the Union Territory, Chandigarh. The said Shri
Gill, willfully ignored the suspicious activities of the under trials and
did not conduct special search of their barrack in violation of paras 97,
98, 100(a), (b) & (f) of the said Manual.
(2) No action was taken by the said Shri V.M. Gill despite reports of
lights of the barrack housing the said under trials being switched off
during the night hours, playing of television or radio at high volume and
continuous flowing of water, facilitating activities of the said under
trials in digging of the escape tunnel and disposing the excavated soil, in
violation of paras 325 and 329 of the said Manual.
(3) No thorough checking of the barrack housing the under trials was
carried out by the said Shri Gill in violation of provisions of the said
Manual, including para 97.
(4) A tunnel was reportedly discovered in the barrack then housing the
three under trials of the Beant Singh case during June, 2002. The said
Shri V.M. Gill in complicity with the under trials and other jail officials
suppresses these facts. In November, 2002 a large number of prohibited
articles were recovered from the above mentioned under trials, which had
been earlier allowed to be delivered to them in complicity with the under
trials as well as their co-conspirators. After recovery of the prohibited
articles, strict action as warranted under Punjab Jail Manual was not taken
against the under trials or any other delinquent jail official. The
investigation have revealed that a large number of prohibited articles have
again been recovered from the cell of the escaped under trials, clearly
indicating the complicity of the said Shri V.M. Gill, who willfully
contravened the provisions of the said Manual including paras 105 and 110.
It was also found that a number of articles such as cell phone (not
recovered), weight lifting iron rod, rope, emergency light, radio, portable
fan, electric wires etc., directly assisted the said under trials to escape
from the Jail.
(5) Meeting of the under trials with the other suspected prisoners within
the jail as well as conspirators outside the jail were neither supervised
nor checked in violation of para 106 of the said Manual.
(6) The said Sh. Gill, was arrested on Jan. 27, 2004 and on his disclosure
statement a book titled 'True Stories of great escapes' was recovered from
his official residence in the jail. A rough site plan prepared by the
police revealed that the tunnel through which the under trials escaped had
similarities with the tunnel mentioned in the said book.
And whereas the above conduct of the said Shri Gill establishes that he was
directly involved in the conspiracy to help the above-mentioned under
trials to escape from the Model Jail, Chandigarh. It has also come to
light during investigation that three of the escaped under trials had
linkage with the Babbar Khalsa International, a known and a dreaded
terrorist organization, which is involve in anti-national and anti-State
activities. The said Shri V.M. Gill is a senior, permanent and non-
transferable official of the Model Jail, Chandigarh and junior jail
officials, who are witnesses in the above case are not likely to come
forward to depose against him if disciplinary proceedings are initiated so
long as he remains in service, for fear of earning his wrath in future.
Further, due to the involvement of the escaped under trials, with the
Babbar Khalsa International, a known and dreaded terrorist organization, no
witness is likely to come forward to depose against him in the disciplinary
proceedings, if initiated, due to fear of life. Independence assessment
also is that three of the escaped under trials are likely, inter alia, to
pose a danger to the lives of the people. In these circumstances I am
satisfied that the holding of an inquiry as contemplated by Article 311 (2)
(b) of the Constitution of India and the Punjab Civil Services (Punishment
and Appeal) Rules, 1970 as made applicable to the employees of Union
Territory, Chandigarh, is not reasonably practicable;
And whereas I am of the view that in the face of such grave culpable acts
of omission and commission there is no justification for the continuation
in service of Shri Gill as he has betrayed all responsibility placed upon
him by law and rules. From the facts that have transpired, I conclude that
there has been misconduct of such magnitude by Shri V.M. Gill that the
severest penalty permissible by law is called for.
Now, therefore, I being the competent authority exercising the powers
conferred by Article 311 (2) of the Constitution of India, having come to
the conclusion that it is not reasonably practicable to hold an inquiry,
hereby dismiss the said Shri V.M. Gill, from service with immediate effect.
Sd/-
Advisor to the Administrator,
U.T., Chandigarh
Dated 1.3.2004"
Orders passed against the other petitioners were premised on the same
foundation, and were to the same effect.
10. During the course of hearing learned counsel for the
appellant/petitioners pleaded, non-application of mind, arbitrariness,
discrimination, and malice in fact as well as in law. Insofar as the issue
of non- application of mind is concerned, it was the vehement contention of
the learned counsel, that they were not assigned duties as would render
them blameworthy for the abovementioned jail-break. Besides various
contentions advanced on the instant aspect of the matter, the primary
submission of the learned counsel was, that personnel from the police
department were in overall supervisory control, and that, they regulated
not only the ingress and egress of jail mates and other visitors, but also
materials and articles which were permitted to enter the jail premises. In
the above background, it was the vehement contention of the learned counsel
for the appellant/petitioners, that they have been made scapegoats for
something that others were truly responsible for.
11. To adjudicate upon the above contention advanced at the hands of the
learned counsel for the appellant/petitioners, it is necessary to
understand the duties and responsibilities assigned to appellant-Ved Mitter
Gill, whose case has been taken as the lead case. The duty chart depicting
the responsibilities assigned to the officers of Model Jail, Burail,
Chandigarh, is available on the record of the case. A relevant extract
thereof is being reproduced hereunder:
"1. Sh. V.M. Gill, Dy. Supdt. Jail
He shall perform his duties under the immediate directions and orders of
the Supdt. Jail. The duties of the Dy. Supdt. Jail are contained in para
91 to 132 of the Punjab Jail Manual. In addition to his normal duty he
will hold the charge of matters relating to:-
i) Establishment
ii) Accounts
iii) Court cases (pending in various courts)
iv) Diet purchase and all miscellaneous matters."
xxx xxx xxx
IMPORTANT NOTE
1. Besides above duties Executive Officers will perform all other duties
assigned to them from time to time in accordance with the provision of
Punjab Jail Manual.
2. All Executive Officer will be present inside Jail in their respective
executive charge daily at the time of lock-up and lock-outs.
3. All will make night rounds to see the security arrangements and
satisfy themselves that inmates are in safe custody.
4. All will accompany the Superintendent, Jail on his weekly parade (on
every Monday) inspection of prisoners as per provision of para 75 of the
Punjab Jail Manual.
Sd/-
Superintendent,
Model Jail, Chandigarh"
(emphasis is ours)
A perusal of the duty chart relating to Ved Mitter Gill reveals, that he
was responsible for duties expressed in paragraphs 92 to 132 of the Punjab
Jail Manual. Extracts of the Punjab Jail Manual are also available on
record of the case, only a few relevant paragraphs, which highlight the
duties and responsibilities vested on the shoulders of Ved Mitter Gill as
Deputy Superintendent of Police, Jail, are being extracted hereunder:
"97. Duties of Deputy Superintendent as to safety of prisoners,
discipline, visits and attendance. - (1) The Deputy Superintendent shall do
all acts and things which may be necessary or expedient for ensuring the
safe custody of all prisoners at any time received into or confined in the
jail, as well as for enforcing and maintaining discipline and order amongst
such prisoners and all subordinate officers of the jail at any time serving
under his orders or control.
(2) The Deputy Superintendent shall, atleast once in every twenty-four
hours,-
(a) himself see every prisoner for the time being confined in the jail;
(b) visit every barrack, ward, cell, compartment, and every other part of
the jail and the premises thereof, including the hospital; and shall, save
as provided in the rules, regulations, directions and orders for the time
being in force in that behalf, always remain present within the jail or the
premises thereof.
Note- The Deputy Superintendent is permitted to be absent for meals at such
times and for such periods as the Superintendent may specify, or when
required to appear in a Court of Justice, or when leave of absence is
granted by the Superintendent.
xxx xxx xxx
100. Duties as to lock-up, counting, labour, food and reporting unusual
occurrences.- (1) It shall be the duty of the Deputy Superintendent to-
(a) be present every evening when the prisoners are locked up for the
night and every morning when the prisoners are taken out of the sleeping
wards, cells or other compartments;
(b) satisfy himself, both night and morning, that all the prisoners are
present and in safe custody;
(c) allot to each prisoner sentenced to undergo rigorous imprisonment a
proper task and satisfy himself that every such prisoner, who is fit for
labour, is daily put to proper labour and performs his allotted task and,
for this purpose, to check the tasks allotted and visit the workshops
frequently while the prisoners are engaged at work;
(d) be present at and superintend the daily weighing and serving out of
rations and satisfy himself that the food-stuffs are properly cleaned and
cooked;
(e) supervise the distribution of food and satisfy himself that each
prisoner receives his proper quantities at the prescribed times, and to
(f) forthwith report every unusual occurrence of a serious nature, to the
Superintendent.
(2) The Superintendent may by a written order take over such of the duties
of the Deputy Superintendent as he may deem necessary for the efficient
running of the jail.
(3) Every action taken under sub-rule (2) shall forthwith be reported by
the Superintendent to the Inspector-General giving full justification
therefor and the Inspector-General may confirm, modify or cancel such
order.
101. Duty of Deputy Superintendent on admission of prisoner. - Upon the
admission of every prisoner the Deputy Superintendent shall-
(a) examine or cause to the examined the warrant or order under which such
prisoner is committed to the Jail and satisfy himself that it is in all
respects complete, in order and valid;
(b) remove, or cause to be removed, from such prisoner all money or other
articles found on him, including (if such prisoner is not, by law, entitled
to retain it) his wearing apparel and (in such case) shall provide him with
a complete Jail out-fit;
(c) take measures to preserve and protect all property taken from, or
belonging to, the prisoner which may come into his hands; and
(d) shall satisfy himself that the provisions of Chapter IV of the Act, and
these rules, as to the admission of prisoners, are duly complied with.
xxx xxx xxx
105. Deputy Superintendent to search weekly for prohibited articles.-
The Deputy Superintendent shall, at uncertain times, at least once a week,
cause each prisoner, and all clothing and bedding, and all wards, cells and
other compartments, workshops, latrines and other places frequented by
prisoners, to be thoroughly searched for prohibited articles.
106. Deputy Superintendent to regulate interviews and communications.-
It shall be the duty of the Deputy Superintendent to regulate all
interviews and communications between prisoners and persons who are not
prisoners and to prevent all persons who are not duly authorised in that
behalf by competent authority from entering the jail premises or having any
access of any kind to, or communication with, any prisoner, and to arrange
that the proper officer of the Jail is present during all interviews held.
xxx xxx xxx
110. Deputy Superintendent to hold parade every Sunday.-
The Deputy Superintendent shall hold a parade of all the prisoners for the
time being confined in the jail on every Sunday Evening and shall,
(a) carefully inspect every prisoner;
(b) examine the clothing, bedding and utensils etc., of every prisoner;
(c) check the muster roll and satisfy himself that every prisoner is
present or accounted for;
and satisfy himself generally that everything is in proper order. He shall
enter a report of his inspection in his journal, noting therein the state
of the clothing, cleanliness, numerical strength and other matters of
importance relating to the prisoners.
xxx xxx xxx
117. The Deputy Superintendent shall enter daily in his journal:-
(a) the time the wards were opened;
(b) the members of the staff (if any) who were absent;
(c) the time prisoners began work;
(d) the time work was stopped in the forenoon and when it was recommenced;
(e) the time work was stopped for the day; and
(f) the time the lock-up was completed;
(g) that the gratings and locks of the jail were got tested and found
intact.
xxx xxx xxx
120. Deputy Superintendent responsible for the efficiency of the guard.-
(1) The Deputy Superintendent shall satisfy himself that a sufficient
strength of the guard to meet all emergencies is at all times present at
the jail and ready to be armed, and that the warders sleep in the quarters
allotted to them and do not leave the jail premises without permission.
(2) The Deputy and the Assistant Superintendent shall at least once a week
in addition to their routine night round search the relieved and relieving
night guards between the gates (after 10 P.M. and before 4.00 A.M.)."
(emphasis is ours)
It is not necessary for us to further delve into the nature of duties
assigned to appellant-Ved Mitter Gill in his capacity as Deputy
Superintendent Jail, because we have highlighted the relevant paragraphs of
Punjab Jail Manual, which meticulously highlight the nature of his duties
and responsibilities. Having examined the same, we are satisfied, that the
responsibility of jail inmates exclusively rests on the shoulders of the
jail staff. On the evaluation of the duties and responsibilities of posts
of Assistant Superintendent Jail, Head Warder and Warder, there remains no
room for any doubt, about the other petitioners also, that they too were
similarly responsible for securing the detention of all jail inmates. We,
therefore find no merit in the contention advanced on behalf of the
appellant/petitioners, that it was not them, but police personnel from the
Chandigarh Police Department, who were responsible for the supervisory
control over jail inmates, at the Model Jail, Burail, Chandigarh.
12. Another contention advanced at the hands of the learned counsel for
the appellant/petitioners was, that the entire action initiated at the
hands of the respondents was vitiated, on account of malice in fact as also
malice in law. Insofar as the instant aspect of matter is concerned, our
attention has been invited to the factual position pleaded in Civil
Miscellaneous Nos. 8930-31 of 2010 in Civil Writ Petition No.5147-CAT of
2007. It would be pertinent to mention, that the aforesaid civil
miscellaneous application was filed by Dalbir Singh Sandhu, Deputy
Superintendent of Police. Our pointed attention was invited to the
following factual position expressed in the aforesaid civil miscellaneous
application:
"....Interestingly a perusal of the record filed before the Criminal Court
by the Chandigarh Police of the Special Mulakat Register shows that in
those copies the signatures of the supervisory staff i.e. the Chandigarh
Police is missing. Apparently these documents have been also considered by
the competent authority to pass the impugned order against the petitioner.
Photocopies of some of the pages of the Special Mulakat Register have been
annexed earlier. The typed copies of the same for the corresponding days as
submitted by the prosecution before the Criminal Court and apparently which
were considered by the competent authority to terminate the services of the
petitioner are annexed herewith as Annexures A/1 and A/2 respectively."
Having given our thoughtful consideration to the pleadings extracted
hereinabove, and having perused the annexures A/1 and A/2 referred to in
the above pleadings, we are satisfied that the contention advanced at the
hands of the learned counsel for the appellant/petitioners is wholly
misconceived. The presence of police personnel to extend external support
to a jail facility is understandable. There is nothing wrong about the
same. Police personnel may be posted outside the jail premises, for
obvious reasons. Such police personnel would be oblivious of the
activities within the four walls of the jail itself. The presence of
police personnel within the administrative framework of a jail, is out of
the question. The appellant/petitioners have not placed any material on
the record of the case to demonstrate, that police personnel from the
police department were assigned duties within the barracks of Model Jail,
Burail, Chandigarh. In our considered view, within the jail premises, only
the jail staff can be permitted to function. And in case of lapses within
the jail premises, it is the jail staff alone which is responsible. Based
on the factual position brought to our notice from the pleadings and
annexures referred to above, it is not possible for us to accept the
submission advanced at the hands of the learned counsel for the
appellant/petitioners, that the action initiated against the
appellant/petitioners can be vitiated for the reasons of malice in fact or
malice in law.
13. Out of the submission advanced by the learned counsel for the
appellant/petitioners, the contention which could have been of some
significance was, that the reasons mentioned in the impugned order of
dismissal from service, were a mechanical repetition of grounds routinely
and casually expressed without application of mind, in such like orders.
And in that view of the matter, the contention, that the satisfaction
recorded by the disciplinary authority does not constitute a valid
satisfaction in the eyes of law. It was in the instant context, that the
learned counsel invited our attention to some judgments rendered by this
Court. First of all, reliance was placed on Tarsem Singh v. State of
Punjab, (2006) 13 SCC 581. Our pointed attention was invited to the
following observations recorded therein:
"10. It is now a well-settled principle of law that a constitutional right
conferred upon a delinquent cannot be dispensed with lightly or arbitrarily
or out of ulterior motive or merely in order to avoid the holding of an
enquiry. The learned counsel appearing on behalf of the appellant has
taken us through certain documents for the purpose of showing that
ultimately the police on investigation did not find any case against the
appellant in respect of the purported FIR lodged against him under Section
377 IPC. However, it may not be necessary for us to go into the said
question.
11. We have noticed hereinbefore that the formal enquiry was dispensed
with only on the ground that the appellant could win over aggrieved people
as well as witnesses from giving evidence by threatening and other means.
No material has been placed or disclosed either in the said order or before
us to show that subjective satisfaction arrived at by the statutory
authority was based upon objective criteria. The purported reason for
dispensing with the departmental proceedings is not supported by any
document. It is further evident that the said order of dismissal was
passed, inter alia, on the ground that there was no need for a regular
departmental enquiry relying on or on the basis of a preliminary enquiry.
However, if a preliminary enquiry could be conducted, we fail to see any
reason as to why a formal departmental enquiry could not have been
initiated against the appellant. Reliance placed upon such a preliminary
enquiry without complying with the minimal requirements of the principle of
natural justice is against all canons of fair play and justice. The
appellate authority, as notice hereinbefore, in its order dated 24-6-1998
jumped to the conclusion that he was guilty of grave acts of misconduct
proving complete unfitness for police service and the punishment awarded to
him is commensurate with the misconduct although no material therefor was
available on record. It is further evident that the appellate authority
also misdirected himself in passing the said order insofar as he failed to
take into consideration the relevant facts and based his decision on
irrelevant factors.
12. Even the Inspector General of Police in passing his order dated
26-11-1999, despite having been asked by the High Court to pass a
speaking order, did not assign sufficient or cogent reason. He, like the
appellate authority, also proceeded on the basis that the appellant was
guilty of commission of offences which are grave and heinous in nature and
bring a bad name to the police force of the State on the whole. None of
the authorities mentioned hereinbefore proceeded on the relevant material
for the purpose of arriving at the conclusion that in the facts and
circumstances of the case sufficient cause existed for dispensing with the
formal enquiry. This aspect of the matter has been considered by this
Court in Jaswant Singh v. State of Punjab, (1991) 1 SCC 362, wherein
relying upon the judgment of the Constitution Bench of this Court, inter
alia, in Union of India v. Tulsiram Patel, (1985) 3 SCC 398, it was held:
(Jaswant Singh case (supra), SCC p. 368, para 4)
"Although Clause (3) of that article makes the decision of the disciplinary
authority in this behalf final such finality can certainly be tested in a
court of law and interfered with if the action is found to be arbitrary or
mala fide or motivated by extraneous considerations or merely a ruse to
dispense with the inquiry."
13. In that case also like the present one, the attention of the Court was
not drawn to any material existing on the date of passing of the impugned
order in support of the allegations contained in the order dispensing with
the departmental enquiry."
(emphasis is ours)
Learned counsel thereupon placed reliance on State of Punjab v. Harbhajan
Singh, (2007) 15 SCC 217. They invited our attention to the following
observation recorded therein:
"3. Learned counsel then contended that no departmental enquiry could be
held against the respondent in view of his involvement with terrorists. In
the suit, the State did not place any material to establish that any case
was made out for dispensation of a regular departmental enquiry as required
under clause (2) to Article 311 of the Constitution of India. The question
is now covered by a recent decision of this Court in Tarsem Singh v. State
of Punjab, (2006) 13 SCC 581, wherein this Court has opined that if no
material is brought to the notice of the Court on the date of passing of
the impugned order in support of the allegations contained therein as to
why it was impractical to hold a regular disciplinary proceeding, the order
of termination would not be sustainable."
(emphasis is ours)
14. In order to fully clarify the legal position on the issue in hand,
learned counsel for the Chandigarh Administration, invited our attention to
the decision rendered in Southern Railway Officers Association v. Union of
India, (2009) 9 SCC 24. In the above cited judgment, this Court having
placed reliance on Union of India v. Tulsiram Patel, (1985) 3 SCC 398,
Satyavir Singh v. Union of India, (1985) 4 SCC 252, Kuldip Singh v. State
of Punjab, (1996) 10 SCC 659, Union of India v. R. Reddappa, (1993) 4 SCC
269 and Indian Railway Construction Co. Ltd. v. Ajay Kumar, (2003) 4 SCC
579, recorded its conclusions as under:
"26. The law laid down by this Court being clear and explicit, the
question which would arise for our consideration is whether in then
prevailing situation, what a reasonable man taking a reasonable view would
have done.
27. The High Court in its judgment opined:
(i) That the statement of the disciplinary authority that "I am convinced
that it is not reasonably practicable to hold an inquiry" is against the
dicta laid down by this Court in Union of India vs. Tulsiram Patel, (1985)
3 SCC 398.
(ii) In the absence of any reason, much less recorded, as has been mandated
under the Rule, to show that it was not reasonably practicable to hold a
disciplinary inquiry, we are of the opinion that the discretionary power
was exercised for extraneous purpose to dismiss the delinquents and that
the same is arbitrary and perverse since no reasonable person could form
such an opinion on the given material and thus the impugned orders of
dismissal are hit by malice also. The alleged incident and the impugned
orders of dismissal were all dated 31-1-2004 which shows the haste in which
the disciplinary authority has acted.
(iii) While invoking the stringent extraordinary provisions like Rule
14(ii), principles of natural justice require every care to be taken by the
authorities concerned. Any haste in invoking such stringent provisions,
without even complying with the mandatory requirements of the provision,
would make such decision of the disciplinary authority illegal, being an
abuse of power conferred upon it.
(iv) It can very well be held that the impugned orders of dismissal suffer
from want of materials and in the absence of any material to substantiate
the mere oral stand of the Department that holding an inquiry was not
reasonably practicable, without offering any reasons, much less in writing,
as mandated by law, the impugned orders of dismissal are liable to be
quashed.
(v) In the case in hand, since the authorities have invoked the
extraordinary power under Rule 14(ii) dispensing with the inquiry, and
further since the alleged incident was held to be not proved by the
criminal court, after thorough trial, the appellate and revisional
authorities ought to have considered the said aspect of acquittal while
imposing the punishment. Therefore, we are of the view that the fact of
acquittal is a circumstance to be considered while awarding punishment in
this case.
We with respect are unable to agree therewith.
28. The disciplinary authority in its order dated 31-1-2004 categorically
stated:
(i) That the delinquent employees attempted to cause bodily harm to Shri
S.M. Krishnan; created an ugly scene which brought a bad name to the
Railways; officers who tried to protect Shri S.M. Krishnan were badly
abused; Shri S.M. Krishnan and his family were threatened to be killed if
he goes to Chennai; it was a pre-planned attempt as a handwritten poster
was displayed in the workshop as well as at the railway station wherein it
was stated that Shri S.M. Krishnan will die on 31-1-2004 and his cremation
will be done at 1430 hours when Train No. 6128 leaves the railway station.
(ii) That all of them have conspired and assaulted Shri S.M. Krishnan as a
result whereof he could not undertake the journey and had to go by road
with escort.
(iii) The formality of holding a disciplinary proceeding was dispensed with
stating:
"You along with other associates threatened, intimidated and terrorized all
the officers. The atmosphere of violence, general indiscipline and
insubordination is prevailing. In view of this situation I am convinced
that it is not reasonably practicable to hold an enquiry."
29. It was concluded:
"I, therefore, in exercise of the powers conferred upon me under Rule
14(ii) of the Railway Servants (Discipline & Appeal) Rules, 1968, hereby
dismiss you from railway service with effect from 31-1-2004
(A/N). You are required to hand over the railway property in your custody.
You are also required to vacate the railway quarters, if in occupation,
within one month from the date on which a copy of this notice is delivered.
You are hereby advised that under Rules 18 and 19 of the Railway Servants
(Discipline & Appeal) Rules, 1968, you may prefer an appeal against these
orders to CWM/GOC provided that:
(i) The appeal is preferred within a period of 45 days from the date on
which a copy of this notice is delivered.
(ii) The appeal is to be preferred in your own name and presented to the
authority to whom the appeal lies and does not contain any disrespectful
and improper language."
30. An order of a disciplinary authority in a case of this nature, as laid
down by this Court in Tulsiram's case (supra), must be judged by a court
exercising power of judicial review by placing himself in his armchair. The
disciplinary authority was a man at the spot. He acted on the basis of a
report made to him. He also knew about the written poster having been
displayed. The atmosphere which was prevailing in the workshop must be
known to him. Not only the disciplinary authority but also the appellate
authority, having regard to the materials brought on record, arrived at the
said finding.
xxx xxx xxx
33. While thus considering as to whether there had been enough material
before the disciplinary authority for the purpose of arriving at its
satisfaction that it was not reasonably practicable to hold departmental
proceedings, the appellate authority, in our opinion, was entitled to
consider the situation prevailing from the confidential reports submitted
by other employees. They were not relied upon for the purpose of proving
misconduct but for the purpose that in the situation which was prevailing,
whether it was reasonably practicable to hold an enquiry. There is no
dispute that the protection accorded to an employee by reason of the
constitutional provision of mandate of recording of reasons is of great
significance. Such reasons, in our opinion, in the instant case, have been
recorded.
xxx xxx xxx
35. So far as the finding of the High Court that the orders of dismissal
suffer from want of material is concerned, the orders of the disciplinary
authority themselves disclose existence of sufficient materials. Before the
statutory authorities, the incident was not denied. Lodging of the first
report was also not denied. The fact that one of the delinquent officials
was arrested on the same day was not denied. Arrest of others after a
period of two weeks also stood admitted. Display of handwritten poster both
at the workshop and at the railway station had also not been denied.
36. We do not find that before the High Court the delinquent employees
brought on record any material that the grounds stated in the orders of
dismissal were wholly non-existent. No mala fides on the part of the
disciplinary authority was attributed. It is not the case of the
delinquent employees that the disciplinary authority in passing the said
order took into consideration any irrelevant fact not germane therefor or
failed to take into consideration any relevant fact."
(emphasis is ours)
15. Before delving into the pointed issues canvassed at the hands of the
learned counsel representing appellant/petitioners, it is necessary for us
to notice the parameters laid down by this Court for invoking clause (b) of
the second proviso to Article 311(2) of the Constitution of India. Insofar
as the instant aspect of the matter is concerned, the norms stipulated by
this Court for the above purpose, require the satisfaction of three
ingredients. Firstly, that the conduct of the delinquent employee should
be such as would justify one of the three punishments, namely, dismissal,
removal or reduction in rank. Secondly, the satisfaction of the competent
authority, that it is not reasonably practicable to hold an inquiry, as
contemplated under Article 311(2) of the Constitution of India. And
thirdly, the competent authority must record the reasons of the above
satisfaction in writing.
16. On the issue whether it is reasonably practicable to hold an inquiry
as contemplated under Article 311(2) of the Constitution of India is
concerned, this Court elaborately expressed the required norms, in Union of
India v. Tulsiram Patel (supra), as under:
"130. The condition precedent for the application of clause (b) is the
satisfaction of the disciplinary authority that "it is not reasonably
practicable to hold" the inquiry contemplated by clause (2) of Article 311.
What is pertinent to note is that the words used are "not reasonably
practicable" and not 'impracticable'. According to the Oxford English
Dictionary 'practicable' means "Capable of being put into practice, carried
out in action, effected, accomplished, or done; feasible". Webster's Third
New International Dictionary defines the word 'practicable' inter alia as
meaning "possible to practice or perform: capable of being put into
practice, done or accomplished: feasible". Further, the words used are not
"not practicable" but "not reasonably practicable". Webster's Third New
International Dictionary defines the word 'reasonably' as "in a reasonable
manner: to a fairly sufficient extent". Thus, whether it was practicable to
hold the inquiry or not must be judged in the context of whether it was
reasonably practicable to do so. It is not a total or absolute
impracticability which is required by clause (b). What is requisite is that
the holding of the inquiry is not practicable in the opinion of a
reasonable man taking a reasonable view of the prevailing situation. It is
not possible to enumerate the cases in which it would not be reasonably
practicable to hold the inquiry, but some instances by way of illustration
may, however, be given. It would not be reasonably practicable to hold an
inquiry where the government servant, particularly through or together with
his associates, so terrorizes, threatens or intimidate witnesses who are
going to give evidence against him with fear of reprisal as to prevent them
from doing so or where the government servant by himself or together with
or through other threatens, intimidates and terrorizes the officer who is
the disciplinary authority or members of his family so that he is afraid to
hold the inquiry or direct it to be held. It would also not be reasonably
practicable to hold the inquiry where an atmosphere of violence or of
general indiscipline and insubordination prevails, and it is immaterial
whether the concerned government servant is or is not a party to bringing
about such an atmosphere. In this connection, we must bear in mind that
numbers coerce and terrify while an individual may not. The reasonable
practicability of holding an inquiry is a matter of assessment to be made
by the disciplinary authority. Such authority is generally on the spot and
knows what is happening. It is because the disciplinary authority is the
best judge of this that clause (3) of Article 311 makes the decision of the
disciplinary authority on this question final. A disciplinary authority is
not expected to dispense with a disciplinary inquiry lightly or arbitrarily
or out of ulterior motives or merely in order to avoid the holding of an
inquiry or because the Department's case against the government servant is
weak and must fail. The finality given to the decision of the disciplinary
authority by Article 311(3) is not binding upon the court so far as its
power of judicial review is concerned and in such a case the court will
strike down the order dispensing with the inquiry as also the order
imposing penalty. The case of Arjun Chaubey v. Union of India, (1984) 2 SCC
578, is an instance in point. In that case, the appellant was working as a
senior clerk in the office of the Chief Commercial Superintendent, Northern
Railway, Varanasi. The Senior Commercial Officer wrote a letter to the
appellant calling upon him to submit his explanation with regard to twelve
charges of gross indiscipline mostly relating to the Deputy Chief
Commercial Superintendent. The appellant submitted his explanation and on
the very next day the Deputy Chief Commercial Superintendent served a
second notice on the appellant saying that his explanation was not
convincing and that another chance was being given to him to offer his
explanation with respect to those charges. The appellant submitted his
further explanation but on the very next day the Deputy Chief Commercial
Superintendent passed an order dismissing him on the ground that he was not
fit to be retained in service. This Court struck down the order holding
that seven out of twelve charges related to the conduct of the appellant
with the Deputy Chief Commercial Superintendent who was the disciplinary
authority and that if an inquiry were to be held, the principal witness for
the Department would have been the Deputy Chief Commercial Superintendent
himself, resulting in the same person being the main accusor, the chief
witness and also the judge of the matter.
131. It was submitted that where a delinquent government servant so
terrorizes the disciplinary authority that neither that officer nor any
other officer stationed at that place is willing to hold the inquiry, some
senior officer can be sent from outside to hold the inquiry. This
submission itself shows that in such a case the holding of an inquiry is
not reasonably practicable. It would be illogical to hold that the
administrative work carried out by senior officers should be paralysed
because a delinquent government servant either by himself or along with or
through others makes the holding of an inquiry not reasonably practicable.
132. It is not necessary that a situation which makes the holding of an
inquiry not reasonably practicable should exist before the disciplinary
inquiry is initiated against a government servant. Such a situation can
also come into existence subsequently during the course of an inquiry, for
instance, after the service of a charge-sheet upon the government servant
or after he has filed his written statement thereto or even after evidence
has been led in part. In such a case also the disciplinary authority would
be entitled to apply clause (b) of the second proviso because the word
'inquiry' in that clause includes part of an inquiry. It would also not be
reasonably practicable to afford to the government servant an opportunity
of hearing or further hearing, as the case may be, when at the commencement
of the inquiry or pending it the government servant absconds and cannot be
served or will not participate in the inquiry. In such cases, the matter
must proceed ex parte and on the materials before the disciplinary
authority. Therefore, even where a part of an inquiry has been held and the
rest is dispensed with under clause (b) or a provision in the service rules
analogous thereto, the exclusionary words of the second proviso operate in
their full vigour and the government servant cannot complain that he has
been dismissed, removed or reduced in rank in violation of the safeguards
provided by Article 311(2)."
(emphasis is ours)
17. Insofar as the requirement of reasons reflecting the reasonable
practicability, of holding an inquiry in writing is concerned, this Court
in the case of Union of India v. Tulsiram Patel (supra) held as under:
"133. The second condition necessary for the valid application of clause
(b) of the second proviso is that the disciplinary authority should record
in writing its reason for its satisfaction that it was not reasonably
practicable to hold the inquiry contemplated by Article 311(2). This is a
constitutional obligation and if such reason is not recorded in writing,
the order dispensing with the inquiry and the order of penalty following
thereupon would both be void and unconstitutional.
134. It is obvious that the recording in writing of the reason for
dispensing with the inquiry must precede the order imposing the penalty.
The reason for dispensing with the inquiry need not, therefore, find a
place in the final order. It would be usual to record the reason separately
and then consider the question of the penalty to be imposed and pass the
order imposing the penalty. It would, however, be better to record the
reason in the final order in order to avoid the allegation that the reason
was not recorded in writing before passing the final order but was
subsequently fabricated. The reason for dispensing with the inquiry need
not contain detailed particulars, but the reason must not be vague or just
a repetition of the language of clause (b) of the second proviso. For
instance, it would be no compliance with the requirement of clause (b) for
the disciplinary authority simply to state that he was satisfied that it
was not reasonably practicable to hold any inquiry. Sometimes a situation
may be such that it is not reasonably practicable to give detailed reasons
for dispensing with the inquiry. This would not, however, per se invalidate
the order. Each case must be judged on its own merits and in the light of
its own facts and circumstances.
135. It was vehemently contended that if reasons are not recorded in the
final order, they must be communicated to the concerned government servant
to enable him to challenge the validity of the reasons in a departmental
appeal or before a court of law and that failure to communicate the reasons
would invalidate the order. This contention too cannot be accepted. The
constitutional requirement in clause (b) is that the reason for dispensing
with the inquiry should be recorded in writing. There is no obligation to
communicate the reason to the government servant. As clause (3) of
Article 311 makes the decision of the disciplinary authority on this point
final, the question cannot be agitated in a departmental appeal, revision
or review. The obligation to record the reason in writing is provided in
clause (b) so that the superiors of the disciplinary authority may be able
to judge whether such authority had exercised its power under clause (b)
properly or not with a view to judge the performance and capacity of that
officer for the purposes of promotion etc. It would, however, be better for
the disciplinary authority to communicate to the government servant its
reason for dispensing with the inquiry because such communication would
eliminate the possibility of an allegation being made that the reasons have
been subsequently fabricated. It would also enable the government servant
to approach the High Court under Article 226 or, in a fit case, this Court
under Article 32. If the reasons are not communicated to the government
servant and the matter comes to the court, the court can direct the reasons
to be produced, and furnished to the government servant and if still not
produced, a presumption should be drawn that the reasons were not recorded
in writing and the impugned order would then stand invalidated. Such
presumption can, however, be rebutted by a satisfactory explanation for the
non-production of the written reasons."
(emphasis is ours)
18. Whilst examining the requirements, pertaining to the applicability of
clause (b) to the second proviso under Article 311(2) of the Constitution
of India is concerned, it would also be proper to notice the observations
of this Court in Union of India v. Tulsiram Patel (supra), wherein it was
held as under:
"138. Where a government servant is dismissed, removed or reduced in rank
by applying clause (b) or an analogous provision of the service rules and
he approaches either the High Court under Article 226 or this Court under
Article 32, the court will interfere on grounds well established in law for
the exercise of power of judicial review in matters where administrative
discretion is exercised. It will consider whether clause (b) or an
analogous provision in the service rules was properly applied or not. The
finality given by clause (3) of Article 311 to the disciplinary authority's
decision that it was not reasonably practicable to hold the inquiry is not
binding upon the court. The court will also examine the charge of mala
fides, if any, made in the writ petition. In examining the relevancy of the
reasons, the court will consider the situation which according to the
disciplinary authority made it come to the conclusion that it was not
reasonably practicable to hold the inquiry. If the court finds that the
reasons are irrelevant, then the recording of its satisfaction by the
disciplinary authority would be an abuse of power conferred upon it by
clause (b) and would take the case out of the purview of that clause and
the impugned order of penalty would stand invalidated. In considering the
relevancy of the reasons given by the disciplinary authority the court will
not, however, sit in judgment over them like a court of first appeal. In
order to decide whether the reasons are germane to clause (b), the court
must put itself in the place of the disciplinary authority and consider
what in the then prevailing situation a reasonable man acting in a
reasonable way would have done. The matter will have to be judged in the
light of the then prevailing situation and not as if the disciplinary
authority was deciding the question whether the inquiry should be dispensed
with or not in the cool and detached atmosphere of a court- room, removed
in time from the situation in question. Where two views are possible, the
court will decline to interfere."
(emphasis is ours)
19. Reference may also be made to the decision in Kuldip Singh v. State
of Punjab, (1996) 10 SCC 659, wherein this Court recorded the following
observations:
"3. On appeal, the appellate authority found that the appellant did have
links with the terrorists and was mixed up with them and he was supplying
secret information of the police department to terrorists which was
creating hindrance in the smooth functioning of the police department. The
appellate authority also found that it was impossible to conduct an enquiry
against the appellant because nobody would come forward to depose against
such "militant police official". The appellate authority also referred to
the fact that the appellant was interrogated in a case, FIR No. 219 of
1990, and that during interrogation he admitted that he was having links
with Major Singh Shahid and Sital Singh Jakhar and was working for them. It
further stated in its order that the appellant was preparing to murder some
senior police officers while taking advantage of his position.
xxx xxx xxx
8. Proviso (b) to Article 311(2) says that the enquiry contemplated by
clause (2) need not be held
"where the authority empowered to dismiss or remove a person or to reduce
him in rank is satisfied that for some reason, to be recorded by that
authority in writing, it is not reasonably practicable to hold such
enquiry".
Clause (3) of Article 311 expressly provides that
"If, in respect of any such person as aforesaid, the question arises
whether it is reasonably practicable to hold such enquiry as is referred to
in clause (2), the decision thereon of the authority empowered to dismiss
or remove such person or to reduce him in rank shall be final".
These provisions have been the subject-matter of consideration by a
Constitution Bench of this Court in Union of India v. Tulsi Ram Patel,
(1985) 3 SCC 398. It would be appropriate to notice a few relevant holdings
in the said judgment: (SCR pp. 205-74: SCC pp. 454-507, paras 62-138)
"...before denying a government servant his constitutional right to an
inquiry, the first consideration would be whether the conduct of the
government servant concerned is such as justifies the penalty of dismissal,
removal or reduction in rank. Once that conclusion is reached and the
condition specified in the relevant clause of the second proviso is
satisfied, that proviso becomes applicable and the government servant is
not entitled to an enquiry.
* * *
It would also not be reasonably practicable to hold the inquiry where an
atmosphere of violence or of general indiscipline and insubordination
prevails, and it is immaterial whether the government servant concerned is
or is not a party to bringing about such an atmosphere. ... The reasonable
practicability of holding an inquiry is a matter of assessment to be made
by the disciplinary authority. Such authority is generally on the spot and
knows what is happening. It is because the disciplinary authority is the
best judge of this that clause (3) of Article 311 makes the decision of the
disciplinary authority on this question final. ... The finality given to
the decision of the disciplinary authority by Article 311(3) is not binding
upon the court so far as its power of judicial review is concerned....
* * *
Where a government servant is dismissed, removed or reduced in rank by
applying clause (b) or an analogous provision of the service rules and he
approaches either the High Court under Article 226 or this Court under
Article 32, the court will interfere on grounds well established in law for
the exercise of power of judicial review in matters where administrative
discretion is exercised. It will consider whether clause (b) or an
analogous provision in the service rules was properly applied or not. ...
In examining the relevancy of the reasons, the court will consider the
situation which according to the disciplinary authority made it come to the
conclusion that it was not reasonably practicable to hold the inquiry. ...
In considering the relevancy of the reasons given by the disciplinary
authority the court will not, however, sit in judgment over them like a
court of first appeal."
(emphasis is ours)
20. We shall now advert to the impugned order to determine, whether the
three parameters laid down for the valid invocation of clause (b) to the
second proviso under Article 311(2) of the Constitution of India, were made
out. The first ingredient, which is a prerequisite to the sustainable
application of the above clause (b) is, that the delinquency alleged should
be such as would justify, any one of the three punishments, namely,
dismissal, removal or reduction in rank. We have already extracted
hereinabove the order dated 1.3.2004, whereby, the appellant-Ved Mitter
Gill was dismissed from service, with immediate effect. Its perusal
reveals, that the punishment was based on reasons (recorded in the impugned
order) divided into different compartments. The first is contained in the
first paragraph, which deals with the duties and responsibilities vested
with Ved Mitter Gill, as Deputy Superintendent, Model Jail, Burail,
Chandigarh. The second component deals with the escape of four under-
trials from Model Jail, Burail, Chandigarh. Three of the under-trials, who
had escaped, were involved in the assassination of Shri Beant Singh, a
former Chief Minister of State of Punjab. The instant paragraph also
records, the factum that the said three under-trials were having links with
Babbar Khalsa International, a terrorist organization. The fourth under-
trial was being tried separately, for the offence of murder. The third
component of the impugned order, relates to the material taken into
consideration to evaluate the lapses committed by the
appellant/petitioners, as would reveal their involvement with reference to
the alleged delinquency, justifying the punishment of dismissal from
service.
21. We shall now advert to the factual position emerging from the above.
A reference was first of all made to the duties and responsibilities
assigned to the appellant - Ved Mitter Gill. Having detailed the express
duties assigned to him in paragraph 11 above, we have concluded therefrom,
that the responsibility of all the jail inmates (safe custody of all
prisoners) rested on his shoulders, and the petitioners herein, who
assisted him in the same. The appellant - Ved Mitter Gill was required to
satisfy himself once in every twenty-four hours, about the safe custody of
the prisoners. He was also duty-bound to visit every barrack, ward, cell
and compartment every twenty-four hours. He was to be present every
morning and evening, when the prisioners were taken out of the sleeping
wards or cells or other compartments, and then, restored to the same. He
was to make a daily report by day-break and by night, that all the
prisoners were present, and in safe custody. He was also required to
report forthwith, any unusual occurrence. He was required at least once a
week to inspect clothing, beddings, as well as, other articles, by
thoroughly checking all places frequented by prisoners. And to make a
report, if he discovered any prohibited article, during the checking. The
petitioners were associated with the appellant and assisted him in
discharging his aforementioned duties. Had the appellant - Ved Mitter
Gill, and the petitioners, performed their duties diligently, there could
not have been any possibility, of the escape under reference. It cannot be
overlooked, that the escape was made good, by digging the escape tunnel,
which measured ninety-four feet in length (with diagonal dimensions of 21"
x 21"). Six separate reasons have been expressed, by the competent
authority in arriving at its conclusion. We have extracted the impugned
order dated 1.3.2004, in its entirety, hereinabove. It fully establishes
the inferences recorded by us. The determination by the competent
authority, when viewed dispassionately with reference to the duties
assigned to Ved Mitter Gill, leaves no room for any doubt, that the
competent authority was justified in concluding, that the four prisoners
referred to above could never have escaped, if the appellant - Ved Mitter
Gill, and the petitioners, had diligently discharged the duties assigned to
them. Having so concluded, about the responsibility and blameworthiness of
the appellant/petitioners, there can be no doubt that the punishment of
dismissal from service, was fully justified, as their delinquency had
resulted in the escape of four dreaded prisoners.
22. The second ingredient which needs to be met, for a valid exercise of
clause (b) to the second proviso under Article 311(2) of the Constitution
of India, is the satisfaction of the competent authority, that it was not
reasonably practicable, to hold a regular departmental enquiry, against the
employees concerned. On the question whether it was reasonably practicable
to hold an inquiry, the competent authority has recorded its conclusion in
the paragraphs, preceding the one depicting the involvement of the
appellant/petitioners. Amongst the reasons indicated, it has been
recorded, that Ved Mitter Gill being a senior, permanent and non-
transferable officer of Model Jail, Burail, Chandigarh, his junior jail
officers, who alone would have been witnesses in such departmental
proceedings, were not likely to come forward to depose against him, for
fear of earning his wrath in future. The links of the escaped under-trial
prisoners, with the Babbar Khalsa International, a known and dreaded
terrorist organization were also clearly expressed in the impugned order,
as one of the reasons, for it being impracticable, to hold an inquiry
against the appellant/petitioners. It is a matter of common knowledge, and
it would be proper to take judicial notice of the fact, that a large number
of terrorists came to be acquitted during the period in question, on
account of the fact, that witnesses did not appear to depose against them
on account of fear, or alternatively, the witnesses who appeared before the
concerned courts, for recording their deposition, turned hostile, for the
same reason. The situation presented in the factual narration noticed in
the impugned order, clearly achieves the benchmark, for the satisfaction at
the hands of the competent authority, that it would not have been
reasonably practicable, to hold a departmental proceeding against the
appellant/petitioners, in terms of the mandate contained under Article
311(2) of the Constitution of India.
23. The third essential ingredient, for a valid application of clause (b)
to the second proviso under Article 311(2) of the Constitution of India, is
that, the competent authority must record, the reasons of the above
satisfaction in writing. In the present case, there is no serious dispute
on this issue, because the reasons for the satisfaction have been recorded
by the competent authority in the impugned order (dated 1.3.2004) itself.
24. For the reasons recorded above, we are satisfied, that all the
parameters laid down by this Court, for a valid/legal application of clause
(b) to the second proviso under Article 311(2) of the Constitution of
India, were duly complied with.
25. Learned counsel for the appellant/petitioners, lastly placed reliance
on two sets of facts. Firstly, it was contended, that with reference to
the same jail-break incident, a departmental proceeding was also initiated
against D.S. Rana, the then Superintendent, Model Jail, Burail, Chandigarh.
It was pointed out, that the aforesaid D.S. Rana, was holding the post of
Superintendent, Model Jail, Burail, Chandigarh, as a deputationist from the
State of Punjab. It was submitted, that the State of Punjab had not
invoked clause (b) to the second proviso under Article 311(2) of the
Constitution of India, against the aforesaid D.S. Rana. It was pointed
out, that the abovementioned D.S. Rana, has been issued a chargesheet, for
the same charges on which the appellant/petitioners have been dismissed
from service. It was submitted, that a regular departmental enquiry was
being conducted against the aforesaid D.S. Rana. The pointed contention of
learned counsel was, that if a regular departmental enquiry can be
conducted against the aforesaid D.S. Rana, then it can also be conducted
against the appellant/petitioners. Secondly, it was the contention of the
learned counsel, that a regular trial was ongoing, against the appellant,
and the petitioners herein, as also, against the aforesaid D.S. Rana, in
furtherance of first information report bearing no. 17 registered at Police
Station Sector 34, Chandigarh. Yet again, it was the contention of the
learned counsel, that if witnesses can appear in open court proceedings
before the trial court, with reference to the same set of allegations, they
could surely have appeared, in a departmental proceeding as well.
26. We have given our thoughtful consideration to the above noted
contention advanced at the hands of the learned counsel for the
appellant/petitioner. It is not possible for us to place the appellant and
the petitioners before this Court, on the same pedestal as the aforesaid
D.S. Rana, the then Superintendent, Model Jail, Burail, Chandigarh
(referred to by in the submission noticed above). The reason for this is,
that Ved Mitter Gill was holding the senior-most, permanent and non-
transferable position, at Model Jail, Burail, Chandigarh, whereas D.S.
Rana, referred to in the submission advanced, was only a deputationist at
the said jail. Accordingly, whilst Ved Mitter Gill would always remain
superior to the jail staff who would be summoned as witnesses, in the
departmental proceedings, the aforesaid D.S. Rana would not fall within the
same parameter. D.S. Rana belonged to a different cadre. After his
repatriation to his parent cadre, he could not exercise any supervisory or
administrative control over the staff of the Model Jail, Burail,
Chandigarh. Accordingly, the parallel sought to be drawn between the
controversy in the present case, and the departmental proceedings initiated
against the abovementioned D.S. Rana, erstwhile Superintendent, Jail, is
fallacious.
27. Insofar as the holding of a trial, and the appearance of witnesses
therein is concerned, yet again, the analogy invoked by the learned counsel
representing the appellant/petitioners, is wholly misconceived. Whilst in
a criminal prosecution proof is strict, and must be based on cogent and
acceptable evidence. In a criminal case, there is no alternative but to
establish guilt of an accused, based on acceptable evidence. The evidence
is to be produced before the Court, trying the criminal case. There is no
way the same can be exempted, as in the case of a departmental proceeding.
Insofar as the present controversy is concerned, there is a constitutional
provision creating an exception. Clause (b) of the second proviso to
Article 311(2) of the Constitution of India, is the exception in question,
which authorizes the course adopted by the respondents. The reasons for
dispensing with the departmental enquiry, cannot be dependent upon the
holding or not holding of criminal proceedings, against the
appellant/petitioners. Once the parameters stipulated in clause (b) of the
second proviso to Article 311(2) of the Constitution of India are
satisfied, the submissions advanced at the hands of the learned counsel for
the appellant/petitioners, would not arise.
28. No other submission was advanced at the hands of the learned counsel
for appellant/petitioners. For the reasons recorded hereinabove, we find
no merit in the present appeal, and the connected transferred cases. The
same are accordingly dismissed.
.......................................J.
(Jagdish Singh Khehar)
.......................................J.
(S.A. Bobde)
New Delhi;
March 26, 2015.
ITEM NO.1A COURT NO.4 SECTION IVB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No. 3194/2015 @ SLP(C) No. 20379/2006
VED MITTER GILL
Appellant(s)
VERSUS
U.T. ADMINISTRATION, CHANDIGARH & ORS Respondent(s)
WITH
T.C.(C) No. 41/2010
T.C.(C) No. 42/2010
T.C.(C) No. 43/2010
T.C.(C) No. 44/2010
[HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE S.A.BOBDE,JJ.]
Date : 26/03/2015 This appeal and transferred cases were called on for
judgment today.
For Appellant(s) Mr. M. C. Dhingra,Adv.
Ms. Naresh Bakshi,AOR
For Respondent(s)Ms. Naresh Bakshi,AOR
Ms. Kamini Jaiswal,AOR
Mr. Sudarshan Singh Rawat,AOR
Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the judgment of
the Bench comprising His Lordship and Hon'ble Mr. Justice S.A. Bobde.
Leave granted in S.L.P.(C) No.20379 of 2006.
For the reasons recorded in the Reportable judgment, which is placed
on the file, the appeal, and the connected transferred cases are dismissed.
(Parveen Kr. Chawla) (Renu Diwan)
Court Master Court Master